Drainage districts' authority to mitigate nitrate pollution debated
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James Q. Lynch
CEDAR RAPIDS — Drainage districts, one of the lowest tiers of Iowa government, could play a big role in addressing ag-sourced nitrate pollution that threatens well water, aquifers and the growing “dead zone” in the Gulf of Mexico, according to a new report from an Iowa think tank.
Drainage districts “probably have the power and the obligation” to address nitrate pollution, according to David Osterberg, co-founder of the Iowa City-based Iowa Policy Project and its lead staff researcher on energy and environment.
Historically, drainage districts have not been held accountable for ag-sourced nitrate pollution, according to a paper by Osterberg and colleagues Sarah Garvin, an IPP research associate, and Michael Burkart, a 34-year career researcher with the USDA before joining the Iowa State University faculty.
“If we’re going to start somewhere, we might as well start somewhere where we have the infrastructure in place to do something about it,” Garvin said. “It’s necessary. We’re past the tipping point.”
However, the think tank seems not to understand drainage law that allows drainage districts to assess costs to landowners and can use eminent domain to complete projects only for the “benefit of the district,” according to John Torbert, executive director of the Iowa Drainage District Association. Drainage districts’ “sole purpose of existing is to drain excess water from the land.”
“So it is a legal stretch to assume that monies could be directed toward conservation projects (because) such projects would not ‘benefit the district’ in terms of its ability to drain water,” Torbert said.
About two-thirds of Iowa land is used for row-crop agriculture, primarily corn and soybeans. Much of that land is heavily tiled for drainage to remove excess water in areas that otherwise have poor drainage and crop potential.
The think tank researchers suggested drainage districts’ statutory authority to levy fees and use eminent domain gives them the ability to clean up Iowa waters and the Mississippi River.
If they don’t, Garvin said, drainage districts could be vulnerable to legal action.
Torbert disagreed, arguing that drainage district trustees only have the authority spelled in state law and if statutes are silent on an issue — nitrate mitigation, for example, trustees cannot assume legal authority to act.
“This was specifically spelled out in the recent court decisions on the Des Moines Waterworks lawsuit” as well as United States District Court decisions that drainage districts do not have statutory authority to mandate water quality measures outlined in Iowa’s Nutrient Reduction Strategy, Torbert said.
The Iowa Supreme Court dismissed the Water Works case against three northwest Iowa county boards of supervisors for nitrate contamination in the Raccoon and Des Moines Rivers.
Iowa Policy Project researchers believe that in his dissent in that case, Chief Justice Mark Cady seemed to suggest that drainage districts may have an existing responsibility to address water quality for the public good.
If drainage district law had been developed “with the thought that a drainage district could be a polluter,” Cady wrote, “I am convinced our law would have developed in a way that would have recognized a clear remedy.”
Even if trustees determine that toward conservation projects ‘benefit the district’ in terms of its ability to drain water,” Torbert said landowners who question the projects could stop the projects through what is known as “remonstrance,” a process used to stop projects when landowners perceive projects are too expensive.
Osterberg cited the “public good,” especially in terms of public health, as a reason for drainage districts to mitigate nitrate pollution. He referred to drainage pipes that empty into open ditches that run into streams, rivers and lakes.
If those pipes “were any other entity doing any other kind of business, they would be regulated,” he said.
Burkart argued the convergence of low commodity prices, an emerging plant breeding and seeding industry, and the “perennialization” of commodity crops makes the timing right for new approaches by drainage districts.
One of the causes of nitrate pollution is that seasonal crops such as corn and beans go dormant in the winter. The use of perennial cover crops that would continue to draw water and nitrates out of the ground year-round would help alleviate the problem, Burkart said.
See the full Iowa Policy Project report at http://iowapolicyproject.org/.
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